Citation NR: 9636516
Decision Date: 12/23/96 Archive Date: 01/02/97
DOCKET NO. 93-27 663 ) DATE
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Received from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to payment or reimbursement by the Department of
Veterans Affairs for medical expenses incurred in connection
with the veteran’s unauthorized private emergency room
treatment rendered on January 6, 1994.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
K. J. Alibrando, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1979 to July
1982.
This appeal arises from a March 1994 decision letter of the
Medical Administration Service (MAS) of the Department of
Veterans Affairs Medical Center (VAMC) in Bay Pines, Florida.
The notice of disagreement was submitted in April 1994. The
statement of the case was issued in September 1994. A
substantive appeal was received in October 1994. The Board
notes that in December 1994, the veteran requested that a
hearing, scheduled at his request for January 1995, be
canceled as he was unable to attend.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he is entitled to payment of or
reimbursement by the VA for the medical services rendered to
him in connection with private emergency room treatment on
January 6, 1994. He asserts that treatment was for an
aneurysm for which entitlement to service connection was
claimed.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the appellant has not met the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that his claim for
entitlement to payment of or reimbursement by the VA for
medical expenses incurred in connection with the veteran’s
unauthorized private emergency room treatment rendered on
January 6, 1994 is well grounded.
FINDINGS OF FACT
1. Service connection was granted for pes planus and
bilateral hearing loss, effective from July 1982.
2. The veteran was treated on January 6, 1994 at the Twin
Cities Hospital Emergency Room for headaches of undetermined
etiology.
3. By decision dated in January 1996, the Board dismissed
the claim of entitlement to service connection for
hypertension/residuals of a cerebrovascular accident as not
well grounded.
4. The treatment provide at the private Emergency Room on
January 6, 1994 was not for a service connected disability,
or for a condition associated with and aggravating a service-
connected disability.
5. The veteran does not have a total disability permanent in
nature resulting from a service-connected disability and is
not a participant in VA's vocational rehabilitation program.
6. The veteran's claim is not plausible.
CONCLUSION OF LAW
The claim for payment or reimbursement for the cost of
unauthorized private emergency room treatment on January 6,
1994 is not well grounded. 38 U.S.C.A. § 5107 (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The threshold question to be answered in this case is whether
the appellant has presented evidence of a well-grounded
claim; that is, one which is plausible. If he has not
presented a well-grounded claim, his appeal must fail, and
there is no duty to assist him further in the development of
his claim because such additional development would be
futile. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1
Vet.App. 78 (1990). As will be explained below, the Board
finds that his claim is not well-grounded.
The veteran seeks payment of or reimbursement by the VA for
medical expenses incurred in connection with the veteran’s
unauthorized private emergency room treatment rendered on
January 6, 1994.
By rating action in November 1982, the service connection was
granted for pes planus, evaluated as 10 percent disabling,
effective from July 1982 and for bilateral hearing loss,
evaluated as noncompensable, also effective from July 1982.
A January 1994 Twin Cities Hospital emergency room record
shows that the veteran was seen for complaints of a headache.
It was noted that he was status post brain aneurysm in 1990
and also had a history of status post stroke and post
aneurysm. The diagnosis was headache, etiology undetermined,
berry aneurysm, old. It was noted that the veteran was
discharged and referred to the physician of his choice.
By decision dated in January 1996, the Board dismissed the
claim of entitlement to service connection for
hypertension/residuals of a cerebrovascular accident as not
well grounded.
The VA may reimburse veterans for expenses incurred in non-VA
facilities only in certain circumstances. The relevant
criteria permitting reimbursement or payment of the cost of
unauthorized medical services require that the treatment be
for a service-connected disability or for a condition
associated with and aggravating a service-connected
disability, or the treatment may be for any disability of a
veteran who has a total disability permanent in nature
resulting from a service-connected disability, or under
certain circumstances for participants in VA's vocational
rehabilitation program; there must be a medical emergency
with delay in treatment being hazardous to the veteran's life
or health; and there must be no VA or other Federal
facilities feasibly available for treatment. 38 U.S.C.A. §
1728(a) (West 1991); 38 C.F.R. § 17.80 (1995).
In Hayes v. Brown, 6 Vet.App. 66 (1993), the Court held that
all three statutory requirements of 38 U.S.C.A. § 1728(a)
must be met before reimbursement may be authorized. The
Board observes that the medical expenses associated with
private emergency room treatment on January 6 1994 were not
authorized by the VA and the veteran has not contended
otherwise. The veteran asserted, in effect, that the
treatment was related to an aneurysm for he had claimed
service connection. However, as noted above, that claim was
denied by the Board in January 1996. The record clearly
shows that the treatment in question was not rendered for
either of the veteran’s service connected disabilities or for
a condition associated with and aggravating the service
connected disabilities. The veteran does not have a total
disability resulting from either service connected disability
and he is not a participant in a VA vocational rehabilitation
program. Thus, the veteran’s claim fails to meet the
requirements of the statute and regulation regarding
reimbursement. In Hayes, the Court held that when a claim
does not meet the requirements of the applicable law, the
claim is deficient at its threshold and is not well grounded.
Id. Therefore, the Board concludes that the veteran’s claim
for entitlement to payment or reimbursement by the Department
of Veterans Affairs for medical expenses incurred in
connection with the veteran’s unauthorized private emergency
room treatment rendered on January 6, 1994 is not well
grounded and must be denied.
ORDER
The appeal is denied.
E. M. KRENZER
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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